Frequently Asked Questions of Form I-140(Immigrant Petition for Alien Worker) and Concurrent Filing of I-140 and I-485

Form I-140, Immigrant Petition for Alien Worker, asks U.S. Citizenship and Immigration Services (USCIS) to classify an alien beneficiary as eligible for an employment-based immigrant visa. EB1-A Aliens of Extraordinary Ability and EB-2 National Interest Waiver applicants may self-petition; all other employment-based categories require an employer sponsor to file the I-140 petition.

You may file Form I-140 electronically or by mail, but the supporting evidence must go to a service center. An e-filed Form I-140 is routed automatically to the appropriate Service Center, and the receipt shows where it went. Review that receipt and receipt number carefully and note the receiving location: all later correspondence, including supporting documents, must go to the location named on your e-filing receipt.

Yes. To request Premium Processing for Form I-140, the petitioner must also file Form I-907, Request for Premium Processing Service, and send Form I-140 and Form I-907 together to the address in the Form I-907 instructions. Premium Processing requests should NOT go to a Lockbox facility.

Yes. If Form I-140 is already on file, file Form I-907 with the Service Center where the I-140 is pending and consult the Form I-907 instructions for details. Do NOT send a Premium Processing request to a Lockbox facility. Include a copy of Form I-797C, Notice of Action, showing that the I-140 was accepted, or the transfer notice showing where Form I-140 now sits, if one was issued. To have Form I-907 matched with the pending Form I-140, answer questions 1 through 5 in Part 2 of Form I-907 in full; if that information is missing, Form I-907 will be rejected.

File Form I-140 with accurate information and well-organized supporting documentation; otherwise the petition may be rejected or a final decision delayed.

Follow these tips to have your Form I-140 petition accepted for processing:

1. Use the current edition of the form; older editions may still be accepted.
2. Follow the instructions carefully to determine where to file your Form I-140 petition.
3. Select only one visa preference category in Part 2 of Form I-140. (USCIS rejects the Form I-140 petition if Part 2 is left blank or lists more than one preference category in Part 2.)
4. Answer every question and complete all “answer“ and “check“ boxes. Write “none“ or “n/a“ in an answer box when a question does not apply to you.
5. Print or type in black ink only. Do not “highlight“ or “background shade“ any entry.
6. Be sure the petitioner (the sponsoring employer or you) signs Form I-140.
7. Include the correct fee stated in the form instructions. If you file the petition with other related applications, attach the fee to the petition with a paper clip or staple and write the applicant's name on the payment document (in the memo field).
8. Submit one check per application. If a single check covers more than one petition or application and any form is improperly filed, ALL forms will be rejected.
9. If applicable, submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, signed in original by the representative and the applicant or petitioner.
10. For an electronically filed petition, send the supporting documentation to the address given in the e-filing directions. Do not include any other paper-filed application or petition with the documentation for the e-filed I-140.

Once USCIS receives the Form I-140 petition, it mails a Form I-797 Receipt Notice to the petitioner or to the Form G-28 representative. That notice shows the visa category requested in Part 2 of the I-140. If the category is wrong, the petitioner should ask USCIS to change the visa classification through the National Customer Service Center [1-800-375-5283 1-800-767-1833 (TTY)] before the petition is adjudicated.

USCIS then decides whether to change the preference classification based on the totality of the record. A change of visa preference category cannot be granted once a petition has been adjudicated.

Yes, but a petitioner who wants to classify the alien beneficiary under multiple preference categories must file a separate Form I-140 for each one, with the required fee and supporting documentation.

Submit the labor certification with the Form I-140 within the 180-day validity period that DOL annotates at the bottom of every page of the certification. A petition unsupported by a valid labor certification will be rejected.

These tips help ensure that an I-140 petition requiring a DOL-approved labor certification is accepted for processing:

1. Assemble the package with Form G-28, if any, on top, followed by the I-140. Place the original labor certification directly beneath the I-140, then the remaining supporting documentation.
2. If the labor certification's validity period ends on a Saturday, Sunday, or legal holiday, the petition will be accepted with that certification on the next business day. A petition filed with an expired labor certification after that next business day will be rejected.
3. A DOL-approved labor certification filed electronically with DOL must be signed by the employer, the agent/representative, and the alien beneficiary before it is submitted with the I-140. An I-140 filed with an unsigned labor certification will be rejected. If USCIS inadvertently accepts an I-140, the petitioner will receive a Request for Evidence (RFE) asking for the required signatures.
4. If you need a duplicate labor certification, place a brightly colored sheet directly under the I-140 requesting it in large bold font.
5. If you are filing an amended petition and the original labor certification was already submitted with another I-140, place a brightly colored sheet directly under the petition stating in large bold font that it is an amended petition and that the labor certification was already submitted. Also provide the receipt number of the earlier petition, if available.

Group each category of supporting evidence under the eligibility area it is meant to establish.

A petitioner may organize the evidence as follows:

1. Submit all required documentation and evidence with the petition. USCIS may deny an I-140 without issuing a request for evidence if the evidence required by the instructions and regulations was not provided at filing.
2. If you submit photocopies, make them clear and legible. (Note: If the visa category requires a DOL-approved labor certification, submit the original signed by the petitioner, the alien, and the representative, if any.)
3. Every foreign language document must be accompanied by an English translation certified by a competent translator, who must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ Stapling the translation to the foreign document is helpful.
4. If the alien beneficiary may be entitled to an earlier priority date based on a previously approved I-140, provide a statement to that effect and a copy of the Form I-797 approval notice for the earlier petition. (See 8 C.F.R. 204.5(e))
5. When documenting the alien's publications or citations to the alien beneficiary's work, highlight the alien's name in the relevant articles. You need not send a full dissertation, thesis, or research paper written by the alien beneficiary, or one that cites the alien beneficiary's work. Include the title page, the portion(s) citing the alien's work, and the “works cited“ or bibliography.
6. Tab and label each evidentiary exhibit at the bottom of its first page. For petitions supported by substantial documentation, provide a list of the exhibits and the eligibility criteria each one is submitted to establish. Identify any exhibit offered to meet more than one criterion in that exhibit list.

For an Alien of Extraordinary Ability, identify which of the ten regulatory criteria the alien seeks to satisfy and the evidence supporting each one. Also submit a statement and evidence that the alien beneficiary is entering the U.S. to keep working in the area of sustained national or international acclaim.

An I-140 petition for an Outstanding Professor or Researcher should include the following:

1. The petition should identify which of the six regulatory criteria the alien seeks to satisfy and the evidence supporting each criterion.
2. Provide evidence of at least three years of teaching and/or research experience in the academic field.
3. Submit a copy of the job offer the petitioner issued to the alien beneficiary. The letter or contract must state the title, terms, and conditions of the position offered.
4. If the beneficiary has changed positions since being hired, send the documentation described above for each position.

An I-140 petition for a Multinational Executive or Manager should include the following:

1. Provide evidence and a cover letter describing the foreign employer's name, the position offered in the U.S., the position held abroad, the years of employment, and the date the beneficiary transferred to the U.S. State the claimed relationship between the foreign employer and the U.S. petitioner, such as affiliate, subsidiary, or joint venture.
2. Provide evidence that the U.S. employer has been doing business for at least one year before the petition is filed.

An I-140 petition for an Alien of Exceptional Ability should include the following:

1. Identify the six regulatory criteria the alien seeks to satisfy, and the evidence that supports each one.
2. If filing under Form I-140 Part 2, option d, provide evidence that the alien beneficiary meets the minimum education and experience requirements in the supporting labor certification.

An I-140 petition for a Member of the Professions Holding an Advanced Degree, or for an Alien of Exceptional Ability requesting a National Interest Waiver, should include the following:

1. Identify how the alien qualifies as a member of the professions with an advanced degree (for example, the alien holds an advanced degree, holds a Bachelor's degree plus five years of progressive experience, or qualifies as an alien of exceptional ability).
2. Identify each of the three criteria that must be satisfied (e.g., intrinsic merit, national scope, and national interest) and provide the evidence needed for each one. (See 8 C.F.R. 204.5(k) and Matter of New York State Department of Transportation (NYSDOT), 22 IN Dec. 3363, Int. Dec. 3363 (Act. Assoc. Comm. 1998).

Yes. The petitioner or the Form G-28 representative may send USCIS a letter withdrawing the I-140 petition.

The petitioner or the Form G-28 representative may write to USCIS to withdraw the I-140 petition.

Withdrawal requests should include:

1. A statement that the Form I-140 petitioner wishes to withdraw the petition;
2. The Form I-140 petition receipt number;
3. The name, address and phone number of the petitioner;
4. The name of the alien beneficiary;
5. The alien registration number of the alien beneficiary, if known;
6. The petitioner's signature or the Form G-28 representative.

Form I-485, the adjustment of status application, is what you file once your employment-based immigrant petition is approved. It must be accompanied by items such as photos, an employment letter, an affidavit of support, and a physical examination record.

Immigration regulations have tightened the rules on adjustment of status. You must document that you and your family members have maintained continuous lawful status since entering the U.S. That requirement can be a serious obstacle for anyone whose status lapsed before the employment-based petition was approved.

With a self-petitioned NIW or EB1-A, changing jobs does not affect the pending I-485. Because these petitions are different in nature, applicants enjoy far greater flexibility: the I-485 does not depend on which employer you work for while it is pending.

That does not mean any job will do once the I-485 is filed. You must keep proving and maintaining the EB1-A qualifications, meaning you still work in the same field as when you filed the I-140. If USCIS later issues a Request for Evidence (RFE) or schedules an I-485 interview and you no longer meet the standards in the original I-140, the I-485 may be rejected.

Yes. Even with an employer-sponsored petition, an alien beneficiary of a pending or approved Form I-140 whose Form I-485 has been on file and un-adjudicated for 180 days or more may request to “port“ under AC21 by moving to a new job in the same or similar occupational classification.

An alien beneficiary may request to “port“ under AC21 if the pending or approved Form I-140 petition is accompanied by a Form I-485 that has remained un-adjudicated for 180 days or more, and the new job falls in the same or a similar occupational classification.

To request a change of employers under INA 204(j), the petitioner should take these steps:

1. The alien beneficiary may supplement the Form I-485 record of proceeding with documentation of the new job offer underlying the INA 204(j) portability request.
2. The alien beneficiary, or the Form G-28 representative for the I-485, must send a letter from the new intended permanent employer stating the job title and duties of the offered position, the minimum education or training requirements, the date the alien beneficiary began or will begin employment, and the offered salary or wage. The appropriate authority in the new employer's organization who is authorized to make or confirm an offer of permanent employment must issue and sign the letter.
3. Provide a copy of the Form I-140 approval or receipt notice and a copy of the Form I-485 receipt notice to locate the alien beneficiary's case file and confirm that the application has been pending for at least 180 days.

Yes. In a concurrent filing of an I-140 and I-485, an alien beneficiary may change employers under INA 204(j) while the Form I-140 petition is pending, provided the I-485 adjustment application has been pending at least 180 days. For the I-140 to “remain valid“ under INA 204(j), however, USCIS must find that the I-140 petition was “valid“ when filed: that it was filed on behalf of an alien entitled to the employment-based classification and that it included a valid job offer at the time of filing. The petition therefore must be approved before USCIS can favorably decide a portability request under INA 204(j).

When USCIS receives evidence that an alien seeks to adjust status based on a new job offer under INA 204(j), the adjudicator first checks whether the alien is the beneficiary of an approved I-140. If not, the adjudicator decides whether the unapproved, pending I-140 was approvable when filed; an RFE may issue if the I-140 cannot be approved without further evidence of its merits. Only if the I-140 can be approved will the adjudicator decide the adjustment application, and it will then also determine whether the new position is the same or similar for I-140 portability purposes.

Yes, if the successor employer establishes a successor-in-interest (SII) relationship with the predecessor.

The most recent USCIS memorandum lists these factors for deciding whether a valid SII exists:

1. The successor's job opportunity must be the same as the one originally offered on the labor certification;
2. The successor bears the burden of proving eligibility in all respects, including providing required evidence from the predecessor entity, such as proof of the predecessor's ability to pay the proffered wage as of the date the labor certification was filed with DOL, and;
3. To establish a valid successor-in-interest relationship between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the successor's transfer and assumption of ownership of the predecessor.

Generally, the alien beneficiary may keep the priority date from the predecessor's approved Form I-140, if there is one. Generally, an alien beneficiary may also keep the priority date set by an approved E12 (Outstanding Professor or Researcher) or E13 (Multinational Executive or Manager) petition when a new employer later files for him or her in the E12 or E13 category.

To decide whether a job opportunity matches the one originally offered on the labor certification, adjudicators compare the duties of the position. A different job title, or ancillary changes such as new software used in the job, are not by themselves disqualifying. Nor do wage increases that occur over time affect whether the job remains the same.

Sometimes USCIS is not persuaded that the petitioning category has met its burden of showing that an applicant qualifies. In that situation, USCIS typically issues a “Request for Additional Evidence“ or “Request for Evidence (RFE)“ for the evidence it finds lacking. An applicant should take care to build a strong case that can be approved without such a request. Even so, no one can predict how the officer reviewing a case will respond, and sometimes even the strongest cases draw a “Request for Additional Evidence“.

Answering an RFE well and on time is critical; a faulty response will lead directly to rejection of your I-140 petition.

Yes. USCIS allows a Form I-140 and a Form I-485, the adjustment of status application, to be filed concurrently, but only for the first three preference groups (EB-1, EB-2, and EB-3).

The I-485 may also be filed while the I-140 is pending if a visa number becomes available later. When filed with the I-485, the concurrent filing rule lets USCIS issue an Employment Authorization Document (EAD) and advance parole travel authorization while the I-140 is pending.

USCIS has stated that adjudicating a concurrently filed Form I-140 does not depend on the Form I-485 being ready for adjudication. The guidelines let USCIS adjudicate and approve the petitions separately when a visa becomes unavailable after concurrent filing. In those cases, the I-140 is approved and the I-485 is held in abeyance until a visa number becomes available.

Yes. In a concurrent I-140 and I-485 filing, applicants may apply for interim benefits such as employment authorization and advance parole while the application is held in abeyance.

Concurrent filing of an I-140 and I-485 offers several advantages; the primary ones are:

File I-485 earlier: You, your spouse, and your unmarried children under 21 may file I-485 applications (green card applications) when you or your employer file an I-140 Immigrant Petition for Alien Worker. (The employer normally files the I-140, but you may self-file your I-140 in certain categories, such as Aliens of Extraordinary Ability and National Interest Waiver.) The concurrent filing rule also lets you, your spouse, and your children file I-485s while an earlier I-140 remains pending.

Obtain work authorization(EAD) and travel documents(AP): Filing your I-485 (and those of your family members) also lets you apply for Employment Authorization Documents (EADs) and travel documents (AP). An EAD is a major benefit for spouses who could not otherwise work legally (for example, spouses without an H-1B, O-1, J-1, etc.). Advance Parole helps those who could not otherwise travel (for instance, are out of status) or who want to avoid being stranded overseas by security checks or other problems at a U.S. consulate while applying for a new H-1B visa.

Might be able to leave job earlier: An EAD for the principal beneficiary does not by itself let you leave your current job, but combined with the portability provision, the beneficiary of a pending I-485 may move to a new employer in the same or a similar occupational classification once the I-485 has been pending at least 180 days. Keep in mind that many portability issues remain unresolved, so be very careful before leaving your position. If you leave too early, your I-485 (and your family members' applications, and everything else) may be denied. In some special cases (e.g., Aliens of Extraordinary Ability or National Interest Waiver), you may be able to leave your employer even before the I-485 is filed. Job changes are complicated, however, so get sound legal advice before leaving your job at any point before you receive your green card.

If the I-140 is rejected in a concurrent filing, the accompanying I-485 will be rejected as well.